Is a Mediated Settlement Agreement (MSA) as enforceable and legal as one prepared by attorneys after litigation and court appearances?
Yes. There are three basic ways to obtain an agreement:
- The disputants can write one up themselves and file it with the court, either by themselves or with the help of a paralegal and/or legal document assistant (LDA).
- The disputants can use a mediator to help resolve the issues, have the mediator prepare a Memorandum of Understanding (MOU), have attorney or paralegal/legal document assistant (LDA) convert the MOU to an MSA (Marital Settlement Agreement), and file it with the court either by themselves or with the help of a paralegal or attorney.
- The disputants can hire attorneys, litigate, have the attorneys prepare the agreement and file it with the court.
- Regardless of the evolution, any agreement filed with the court has the same enforceability and remedies if it is not being honored.
The court wants an effective parenting plan that is in the best interests of the child(ren). However, there is evidence that the court has great difficulty in designing an effective parenting plan. Why? Because it is almost impossible to do so when the parties are in an adversarial mode, and the attorneys speak for the parents! Who better, with the help of a mediator (and a psychotherapist when necessary), than the parents (and perhaps the child(ren)) to design the “best” parenting plan.
This is commonly referred to as the “move away issue”, and is a very difficult issue. Why? Because one parent wants to move out of the immediate area with the child(ren). Guess what? The other parent usually objects. Then you have a battle. The courts seem to be divided, sometimes allowing the move, and sometimes not. There may be built in restrictions, and the strength of each argument and facts will be considered.
But it is also possible to mediate this issue. Remember, the parents should be mindful of what is best for the child(ren), and balance this with the economics of the situation. The issue is no less difficult when mediated, but when the parents and mediator (and sometimes a psychotherapist) are working on the problem together, at least the likelihood is greater that there will be a reasonable resolution.
There is a certain amount of money being earned by one or both parties. There are certain expenses of both disputants, and the children “cost” a determinable amount of money. When both parties understand the needs of each other, the child(ren), and fully understand the amount of earnings, and potential earnings, the answers usually become apparent. It is your life, your children, your money – who better to know what will work!
Resolution of a dispute is not always about “rights”. It is about what is fair, equitable, reasonable and doable. Wiere Mediation is about helping the disputants reach a fair, equitable, reasonable and doable agreement. If all one party is interested in is their rights, then they may in fact need an attorney. Concentrating on a thorough review of the facts and circumstances, and a clear understanding of the impact of various decisions, will usually help the disputants move past worrying about rights and accepting what is reality.
Many times one or both of the disputants will have attorneys who represent them and/or serve as consultants, but the issues can still be mediated.
Community property is usually divided “somewhat equally”. To the extent that separate property, inheritances and gifts can be clearly established, these usually remain the property of the person who previously owned the separate property or to the person who received the inheritances or gifts. This is usually a situation where establishing accurate facts resolves the problem. However, it is not always easy to establish accurate facts and often co-mingling has occurred. Wiere Mediation is aware of these issues, and will help you develop an accurate analysis, which will help you resolve how to handle the asset(s) in question.
I know my spouse (partner) has hidden assets and is a scoundrel, how do you handle this?
When the disputants realize they are in a “process” that seeks full disclosure and an equitable resolution, they will usually make full disclosure. Even though Wiere Mediation is non-adversarial, it is thorough! Tax returns and the documents that represent each asset (bank statements, monthly investment reports, pension statements) are thoroughly reviewed. Appraisers and other professionals can be consulted, including private investigators.
Small businesses and family businesses present unique considerations, in litigation and in mediation, but there are ways to analyze the situations, and when a thorough review is made, and all the facts are analyzed, resolutions can be forth coming. Forensic specialists can be used if necessary.
Community property is “all” assets that have been accumulated during the marriage, and that includes interests in the spouses’ retirement benefits earned during the marriage. All community assets are considered when dividing the property.
There is no question that in any dispute there can be a power imbalance or an un-level playing field. The job of Wiere Mediation is to work to neutralize the imbalance and level the playing field. This is easy to say, but may be difficult to achieve. Understanding certain facts regarding this situation helps Wiere Mediation to resolve the problem.
Power has defining features, such as:
- Everyone has some degree of power
- Power is developed from many factors
- Power varies with the situation, and can shift from time to time
- Power is only effective when it is used
- Power does not necessarily affect the mediation
An interesting question: who usually wins in court, the person with the power/money/prestige, or the person without it? Exactly! In our current judicial system it seems that if you have enough power/money/prestige you win! Therefore, maybe mediation is a way where the imbalance can be more effectively dealt with than in the judicial system!
DissoMaster is used as a guideline, and in most cases the “system” tries to find ways to support the use of the DissoMaster Guideline. However, it is your life, your children, your money – not a hypothetical situation based upon hundreds of other situations “averaged” into a DissoMaster Guideline – so the best resolution may be one worked out based upon the specifics of your situation. Wiere Mediation also has access to a computer program that calculates what DissoMaster does, so if necessary, this tool is available.